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Acts Merely Intended. An act contemplated but not yet accomplished, though it may sometimes be ground for preventive remedies, cannot support an action as for a tort. A tort sup poses a wrong actually committed, and this implies a right invaded, or in some manner hindered or abridged. The [*62] mere *intent cannot constitute actionable matter.' A malicious person may purpose to libel his rival in business; he may have the libel prepared, put in print ready for dissemination among the people, have messengers ready for its distribution, so that the evil intent and the deliberate purpose to do mischief are manifested in a manner most emphatic and con clusive; but if no other person has yet seen the libel there is no wrong, because the reputation is not yet assailed, and the right of the party to protection in it is therefore not yet violated. It is only assailed when a publication is made. All that precedes the publication rests in intent, and intent may be overcome by repentance, or accident or the interposition of others may prevent its being carried into effect. Any degree of preparation for a tort can never constitute a tort; if the wrong is prevented there is certainly no wrong suffered.

Elements of a Tort. It is said by the authorities that it is the conjunction of damage and wrong that creates a tort, and there is no tort if either damage or wrong is wanting.' Here

1 Sheple v. Page, 12 Vt. 519; Kimball v. Harman, 34 Md. 407; S. C. 6 Am. Rep. 340; Herron v. Hughes, 25 Cal. 555; Page v. Parker, 43 N. H. 363; Jones v. Baker, 7 Cow. 445.

2 Waterer v. Freeman, Hob. 266. "If a man sustains damage by the wrongful act of another, he is entitled to a remedy; but to give him that title two things must concur; damage to himself and a wrong committed by the other party." BAILEY, J., in Rex v. Pagham, 8 B. & C. 362. Day v. Brownrigg, L. R. 10 Ch. D. 294; Street. Union Bank, L. R. 30 Ch. D. 156; Knapp v. Roche, 94 N. Y. 329; Brown v. Marshall, 47 Mich. 576; Nat. Copper Co. v. Minn. etc. Co. 57 Mich. 83. Distinction between in

jury and damage stated; North Ver-
non v. Voegler, 103 Ind. 314. The
pollution of "
a stream affords," says
FRY J. "a very clear illustration of
the difference between injury and
damage; for the pollution of a clear
stream is to a riparian proprietor be-
low both injury and damage, whilst
the pollution of a stream already
made foul and useless by other pollu-
tions is injury without damage, which
would become at once both injury
and damage on the cessation of other
pollutions." Pennington v. Brinsop,
etc. Co. L. R., 5 Ch. D., 769. As one
has no right to a gratuity by will, he
can maintain no action against an-
other who, by falsehood or otherwise
induces the revocation of a will in his

the word wrong is used in the sense of a thing amiss; something which for any reason the party ought not to do or to permit, and which does not become the actionable wrong called a tort unless the other element is found in the same case, namely, a damage suffered in consequence of the thing amiss. In this sense we shall frequently be compelled to make use of the word wrong, though it may sometimes be confusing to do so. This is one of the inconveniences which follow from employing a word which signifies a quality to designate a class of cases in which, in its ordinary sense, it is only an element, while it is equally applicable to numerous other cases which are not so classed.

Although damage is a necessary element in an actionable wrong, it is sometimes damage merely implied or presumed; not *damage shown. There are many cases in which, in point [*63] of fact, a showing of pecuniary damages is impossible, and some where it would be easy to show that none had been sustained, in which, nevertheless, the law adjudges that a tort has been committed. Illustrations might be found in the law of libel. Any person of ordinary information would perhaps be able to name some man of high national reputation, perhaps in public life, perhaps at the bar, or in some other walk of private life, who, during a long and honorable career, had been conspicuous for the purity of his life and for an unblemished reputation, until he had acquired a hold upon the public confidence which no assault could weaken. Let it be supposed now that one is inspired by malice to attack such a reputation, and make it the target for the most preposterous libels. Here is a wrong clearly, a thing amiss; but if we question ourselves concerning its probable effect, the instinctive answer is, it does not in the least damage the object of this vituperation; it may give the public a sense of outrage, but the only person actually injured is the person attacking, not the one attacked. The former would be rendered infamous, the latter would be unaffected, except as the

favor. Hutchins v. Hutchins, 7 Hill, 104. A man who had intended to publish a directory abandoned his intention by reason of defendant's false representations to his patrons that he would not publish. Held that he was without remedy as an intention is not

property; Dudley v. Briggs, 141 Mass. 582.

That injury without damage is not actionable, see Ming v. Woolfolk, 116 U. S. 599; Raynsford v. Phelps, 49 Mich., 315; Thomas v. Birmingham Canal Co., 49 L. J. (Q. B. D.), 851; Wittich v. First Nat. Bank, 20 Fla. 843.

effort to defame his character would be likely to elicit in his behalf evidences of public sympathy and regard. But if he were to feel impelled by a sense of duty to bring suit for the publication, he would not only be held entitled to substantial damages, but the assessment of these would probably be all the more severe because of the impregnable position occupied in the public confidence by the libeled party, which, although it precluded actual damage, at the same time rendered the moral quality of the assault more atrocious.

A more simple case may be that of the man who has entered the field of another for the purpose of plunder, but been frightened away before the mischief was accomplished. Assuming, in such a case, the impossibility of showing the slightest actual injury, the trespasser is nevertheless held liable to pay damages. The ground of liability is, that from every distinct invasion of right, some damage is presumed; and the law therefore makes some award, though no damages are proven, and none are sus

ceptible of proof. If the reason for this is sought for, [*64] we are *not left in perplexity or doubt. The method

chosen for the protection of rights being an action for the recovery of damages for their invasion, it is manifest that when a party is convicted of the invasion, the conviction must be

'Ashby v. White, 2 Ld. Raym., 938, 955; Herring v. Finch, 2 Lev. 250; Hunt v. Dowman, Cro. Jac. 478; S. C. 2 Roll. R. 21; Weller v. Baker, 2 Wils. 414; Wells. Watling, 2 W. Black. 1233; Blofield v. Payne, 4 B. & Ad. 410; Wood v. Waud, 3 Exch. 748; Barker v. Green, 2 Bing. 317. "Actual, perceptible damage is not indispensable as the foundation of an action; it is sufficient to show the violation of a right in which the law will presume damage." Parke, B. in Embry v. Owen, 6 Exch. 353, 368. am not able to understand how it can correctly be said in a legal sense that an action will not lie even in case of a wrong or violation of a right, unless it is followed by some perceptible damage which can be established as a matter of fact; in other words, that

"I

injuria sine damno is not actionable.

"Actual, perceptible damage is not indispensable as a foundation of an action. The law tolerates no fur. ther inquiry than whether there has been a violation of a right." STORY, J., in Webb v. The Portland Manufacturing Co., 3 Sumner, 189, 192. See, also, Williams v. Esling, 4 Penn. St. 486; Whittemore v. Cutter, 1 Gall. 429; Blanchard v. Baker, 8 Me. 253; Woodman v. Tufts, 9 N. H. 88; Bassett v. Salisbury Manufacturing Co., 28 N. H. 438, 455; Tillotson v. Smith, 32 N. H. 90; Blodgett v. Stone, 60 N. H., 167; Laflin v. Willard, 16 Pick. 64; White . Griffin, 4 Jones, L. 139; Dixon v. Clow, 24 Wend. 191. Chap man v. Copeland, 55 Miss. 467; Blanchard v. Burbank, 16 Ill. App. 875.

followed by some consequences disagreeable to himself, or it could not possibly operate as a restraint. As damages are the only penalty which the law provides for the commission of a tort, it is obvious that a recovery of these must be allowed in every case in which a wrong is committed, or those wrongs for which no damages are awarded will be committed with impunity. Subject every man to the necessity of pointing out in what manner a trespass had caused him a pecuniary injury, and for many of the most vexations there might be no redress and for the rights invaded no protection. Under such a rule the eavesdropper might with impunity invade the privacy of one's home, by listening at key-holes and playing the spy at windows, since acts like these, however annoying and reprehensible, could not in any manner tend to impoverish the family, or deprive them of food, or drink, or clothing, or diminish their current revenue.

Lord HOLT has endeavored to express the legal foundation of recovery in these cases as follows: "The damage is not merely pecuniary, for if a man gets a cuff on the ear from another, though it cost him nothing, no, not so much as a little diachylon, yet he shall have his action, for it is a personal damage."

The idea here is, that it is a damage in contemplation of law *though followed by neither loss nor pain, because the [*65] man's right to personal security has been invaded. As is, perhaps, better expressed by BULLER, J., in another case, an action may be supported because "the right has been injured." And here there is no room for the application of that oft quoted but little understood maxim de minimis non curat lex. It is a maxim that may usefully be applied where a party demands that which is insignificant for mere purposes of vexation; but it "is not an applicable answer to an action for violating a clear right." The law must regard the substantial rights of parties,

4

'Ashby. White, 2 Ld. Raym 938; 955; S. C. 1 Smith Lead. Cas. 425.

2 Hobson . Todd, 4 T. R. 71, 73. "Here," says this judge, "is a wrongdoer, and the plaintiff is entitled to an action without proving any spe cific damages." "When the clear right of a party is invaded in consequence of another's breach of duty, he must be entitled to an action against that party for some amount." Lord DEN

MAN, Ch. J., in Clifton v. Hooper, 6
Q. B. 468. See Fray v. Voules, 1 El.
& El. 839, in which an attorney was
held liable for compromising a suit,
contrary to the instructions of his
client, and it was held to be no an-
swer, that the compromise was rea-
sonable and bona fide, and for the ben-
efit of the client.

3 Hickey v. Baird, 9 Mich. 32.
4 MULLETT, J., in Ellicottville, etc.,

though it may overlook trivial and unimportant matters in giving redress. Therefore, slight errors in computation may be overlooked, though they may exceed the actual damages flowing from a distinct and palpable wrong, where the maxim, if applied, Inight inflict incalculable injury.'

The necessity for the protection of the right requiring a presumption of injury from its violation, the law measures that injury by the best standard at its command, and that is a pecuniary standard. But in doing this it must take into account many

things which it is impossible to estimate in money, [*66] *but which nevertheless, money must compensate; the chief

of these, in many cases, being the personal affront and indig nity which are given by the wrongful act. Even a showing that the party was benefited, rather than damnified, would be no defense, since no man is compellable to have benefits thrust upon him offensively, and in defiance of his right of independent action; and if he were, it might be a good defense to rioters who had tossed one in a blanket, that the exercise was beneficial, or who had thrown him into a river, that his voluntary ablutions were not so frequent as health demanded.

A further reason makes the award of damages a necessity to the preservation of rights in many cases, and that is, that immunity tempts to the repetition of the act, and the frequent repetition has a tendency to fix in the minds of the community an impression that it is rightful—an impression that the party doing it, by consent or in some other manner, has become entitled to do it-and the community at length act upon this idea, and when at last complaint is made of the wrong, the frequent repetition becomes a witness in favor of the wrong-doer, and those who are to

Plank Road Co. v. Buffalo, etc., R. R. Co., 20 Barb. 644, 651. See Ex parte Becker, 4 Hill, 613; Hall v. Fisher, 9 Barb. 17, 29; Schnable v. Koehler, 28 Penn. St. 181; Kidder v. Barker, 18 Vt. 454; Graver v. Sholl, 42 Penn. St. 58; Case v. Dean, 16 Mich. 12.

Smith v. Gugerty, 4 Barb. 614, 620; Boyden v. Moore, 5 Mass, 365; Pindar v. Wadsworth, 2 East. 154; Billingsley v. Groves, 5 Ind. 553; Kemp v. Harmon, 11 Ind. 311; Zehner v. Taylor, 15 Ind. 70.

2 Ex-parte Becker, 4 Hill, 613. See, further, Fullam v. Stearns, 30 Vt. 445; Ripka v. Sergeant, 7 W. & S. 9; Hathorn v. Stinson, 12 Me. 183; Dixon v. Clow, 24 Wend. 188; Cowles v. Kidder, 24 N. H. 359; Jewett v. Whitney, 43 Me. 242; Munroe v. Gates, 48 Me. 463: Champion v. Vincent, 20 Texas, 811; Smethhurst Journey, 1 Houst. 196; Woolsey v. Judd, 4 Duer, 596, 599; Marzetti v. Williams, 1 B. & Ad. 415; The Reward, 2 Dod. Adm. R. 269, 270.

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